Terms and Conditions
1. Validity and Scope
1.1. As a client seeking to use the skill and expertise of XpertScientific (hereinafter referred to as the Consultant), you agree to be bound by the following general terms and conditions. Any additional terms and conditions agreed to by the Client in writing, either as part of the proforma invoice (hereinafter referred to as the Quote) or as a separate consulting agreement, shall form part of the agreement between the Client and the Consultant (hereinafter collectively referred to as the Agreement).
2. Deliverables
2.1. The Consultant shall deliver the Deliverables specified in the Quote to the Client.
2.2. The Client shall ensure that the Consultant is provided in good time with all information in the Client’s possession needed to enable the Consultant to deliver the Deliverables, and the Consultant shall be entitled to rely on that information.
2.3. Following receipt of a written request from the Consultant, the Client shall promptly provide written feedback concerning the Consultant’s proposals, plans, designs and/or preparatory materials relating to the Deliverables and made available to the Client with that written request.
2.4. The Consultant shall use reasonable endeavours to ensure that the Deliverables are delivered to the Client in accordance with the timetable set out in the Quote. The Consultant shall promptly notify the Client of any delays.
2.5. The Consultant shall exercise reasonable skill, care and diligence in the performance of the services in accordance with the standards of the Consultant’s profession.
2.6. The Consultant cannot be held liable for any failure or delay in delivering a Deliverable if such failure or delay is a direct or indirect result of:
a) inadequacies in the scientific design or approach proposed by the Client;
b) failure by the Client to provide access to services or materials necessary to complete the work as specified in the Quote, including, without limitation, access to computing clusters, servers, shared drives or datasets; or
c) inadequacies, faults, omissions or errors in the scientific materials supplied by the Client to the Consultant, including, without limitation, datasets, code, scripts, graphs, tables, equations, formulas and methods.
2.7. The Deliverables are prepared for the specific purpose, scope and materials described in the Quote and are based on the information, data and instructions provided by the Client. The Client remains responsible for reviewing the Deliverables and for any decisions, submissions, publications, implementations or other actions based on them. The Consultant does not guarantee any particular scientific, publication, funding, regulatory, commercial or other outcome.
2.8. Unless otherwise agreed in writing, the Consultant is not responsible for verifying the accuracy, completeness, legality, ownership, provenance or suitability of any data, materials, code, figures, references, assumptions or other information supplied by the Client.
3. Compensation
3.1. The total fee payable by the Client to the Consultant is set out in the Quote. The Client shall pay this fee in separate instalments in accordance with the payment schedule set out in the Quote.
3.2. The Client must make all payments by bank transfer to the Consultant’s bank account as specified in the Quote. All bank transfers must be received in euros and in full; any currency-conversion or bank-transfer charges shall be borne by the Client.
3.3. If the Client does not pay any amount properly due to the Consultant under this Agreement, in accordance with national and European legislation, the Consultant may charge the Client a late-payment service fee of €40.00 or 10% of the amount due (whichever is greater), plus interest on the overdue amount at the rate of 8% per annum above the European Central Bank’s main refinancing rate, which interest shall accrue daily until the date of actual payment.
3.4. If the Client requires any additional services, changes to the agreed Services, additional analyses, work on new or substantially revised materials, additional meetings, or any other change in scope, the Consultant shall be entitled to an adjustment of the fees. Where possible, the Consultant shall provide an estimate of the additional fees before carrying out such additional work. Additional work shall proceed only after written approval by the Client.
3.5. Unless a fixed fee has been expressly agreed in writing, fees quoted for consulting work are estimates based on the information available to the Consultant at the time of the Quote. The final fee may vary depending on the time actually required, the quality and completeness of the materials supplied by the Client, the complexity of the work, and any changes in scope. If it becomes apparent that the estimated fee is likely to be exceeded, the Consultant shall notify the Client and seek approval before carrying out further chargeable work.
3.6. Unless a fixed fee has been agreed, expenses incurred in fulfilling these services, e.g., telephone charges, faxing costs, etc., shall be reimbursed at cost upon the Consultant providing supporting documentation.
3.7. If the Consultant employs the services of third parties, any and all expenses, costs or liabilities arising from such employment or services shall be borne exclusively by the Consultant unless the Consultant has requested and received the prior approval and authorisation of the Client for such hiring or employment.
3.8. The Client shall have no liability for the purchase cost of equipment, services and/or supplies unless the Consultant has requested and received the prior approval and authorisation of the Client for such purchase.
3.9. Unless a fixed fee has been agreed, the Consultant shall submit at least two itemised statements setting out the time spent on each work package, the services rendered and the expenses incurred. The first statement shall be submitted halfway through the contract period and the second statement upon termination of the contract.
3.10. The parties agree that the Consultant shall act as an independent contractor in the performance of its duties under this Agreement and not as an employee of the Client. The Consultant shall be solely responsible for all social security and income-tax remittances.
4. Intellectual Property
4.1. Subject to full payment of all applicable fees and expenses, the Client shall own the project-specific Deliverables and results expressly prepared by the Consultant for the Client under this Agreement, including final reports, edited or revised client documents, project-specific analyses, figures, tables, written recommendations and other materials specifically identified in the Quote as Deliverables.
4.2. The Consultant hereby assigns to the Client, to the extent legally permissible and subject to full payment, all rights, title and interest that the Consultant may have in the project-specific Deliverables and results created specifically for the Client under this Agreement, excluding the Consultant’s Pre-existing Materials as defined below.
4.3. The Consultant retains ownership of all pre-existing intellectual property, materials, tools, templates, code libraries, software, scripts, analytical workflows, methods, procedures, know-how, general expertise, prior inventions, standard documents, reusable text, and other materials developed independently of the Client or outside the scope of this Agreement (“Pre-existing Materials”). Nothing in this Agreement shall transfer ownership of such Pre-existing Materials to the Client.
4.4. To the extent that any Pre-existing Materials are incorporated into or necessary for the use of the Deliverables, the Consultant grants the Client a non-exclusive, non-transferable, royalty-free licence to use those Pre-existing Materials solely as part of, and for the intended use of, the Deliverables, unless otherwise agreed in writing.
4.5. Any general methods, workflows, scripts, code, templates, know-how or expertise developed, adapted or refined during the project, but not specific to the Client’s confidential information or expressly identified as a Deliverable, shall remain the property of the Consultant.
4.6. Notwithstanding the above, the Client remains solely responsible for the scientific content, interpretation, use, publication, submission, implementation and consequences of the Deliverables.
5. Limitation of Liability
5.1. Nothing in these Terms and Conditions shall limit or exclude any liability resulting from negligence, fraud or fraudulent misrepresentation, limit any liabilities in any way that is not permitted under applicable law, or exclude any liabilities that may not be excluded under applicable law.
5.2. Notwithstanding the above, in no event shall the Consultant be liable for any claims by the Client or any third party for any special, indirect, incidental or consequential damages of whatsoever kind and howsoever arising, including, without limitation, breach of copyright or patent rights, whether or not the possibility of such damages had been disclosed to the Consultant in advance or could reasonably have been foreseen by the Consultant.
5.3. Due to the nature of scientific work, the Consultant cannot be held liable for the scientific outcome of the work. The Client’s sole and exclusive remedy for any claims against the Consultant with respect to the quality of work shall be for the Consultant to:
a) re-perform the applicable work until there is no material defect or deficiency of which the Consultant was notified by the Client within fourteen (14) days of completion of that portion of work; in the absence of such notice, any portion of work shall be deemed satisfactory to and accepted by the Client; or
b) if such re-performance is not commercially feasible in the Consultant’s opinion, refund to the Client a pro rata amount of the fees, excluding, for greater certainty, the expenses, attributable to the applicable work.
5.4. The Consultant’s aggregate liability for any and all claims for direct damages shall not exceed the fees, excluding, for greater certainty, the expenses, actually paid to the Consultant under this Agreement during the preceding six (6) month period. The Consultant’s liability for all claims arising out of this Agreement shall cease absolutely after a period of six (6) months from the date of substantial performance of the work. Following the expiry of that period, the Client shall have no claim whatsoever against the Consultant. This limitation of liability shall not apply in the event of the Consultant’s negligent breach of confidentiality.
5.5. Some services are rendered by third parties. Specifically, when requesting a plagiarism check, the Client agrees that the manuscript may be submitted to iThenticate, a separate third-party entity, for the purpose of conducting this check. The Consultant cannot be held liable for the accuracy of these checks or for any breaches of privacy or intellectual property resulting from submission of the manuscript to iThenticate. The general terms and conditions of Turnitin, the parent company, apply.
6. Termination
6.1. The Consultant may terminate the Agreement at any time by giving notice to the Client if the Client commits a material breach of the Agreement that is not remedied within 14 days. Failure to pay fees and expenses by the due date shall constitute a material breach. Notwithstanding the above, failure by the Client to pay the first instalment prior to the agreed start date of the Work shall delay the agreed start date until such payment has been received by the Consultant.
6.2. The Client may terminate the Agreement by notice to the Consultant at any time, with or without cause.
6.3. Upon termination, the Client shall pay the Consultant all fees for work already carried out and expenses actually incurred and due up to the termination date.
6.4. Termination shall not prejudice the accrued rights and liabilities of the parties.
7. Confidentiality
7.1. Each party agrees to protect the other party’s trade secrets, financial information, including, without limitation, costs, pricing, profit or margin information, employee information, including, without limitation, identity, skills and remuneration, inventions, know-how, formulas, code, specifications, research, datasets and any other information that should reasonably be understood to be confidential or proprietary (“Confidential Information”). Confidential Information may be disclosed only to employees, consultants and representatives who require such Confidential Information in connection with the performance of obligations under this Agreement.
7.2. Notwithstanding the above, either party may disclose the other party’s Confidential Information to the extent and to the persons or entities required under applicable governmental law, rule, regulation or order, provided that the disclosing party (a) first gives prompt written notice of such disclosure requirement so as to enable the other party to seek any limitations on or exemptions from such disclosure requirement and (b) reasonably cooperates, at the other party’s request, in any such efforts.
8. General
8.1. No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
8.2. If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement shall continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part shall be deemed to be deleted, and the rest of the provision shall continue in effect, unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision shall be deemed to be deleted.
8.3. This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
9. Trademark and Copyright Notice
9.1. The XpertScientific logo is a registered trademark, indicated by the ® symbol. Its reproduction or use in any form or variation is subject to copyright. All additional content on the XpertScientific website, including text, artwork and associated imagery, is copyright material of XpertScientific and its use is protected by law. All rights are reserved, including the right to reproduce the logo or website material in any form whatsoever, including by photocopying, scanning, audiotape, videotape or electronic means.
10. Governing Law & Jurisdiction
10.1. This Agreement shall be governed by and construed in accordance with the laws of Spain, without giving effect to any choice-of-law or conflict-of-law provisions. The parties consent to the exclusive jurisdiction and venue of the courts of the city of Barcelona, Spain.
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